On October 23, 2018, the Appeals Board issued an en banc decision interpreting Labor Code section 4062.3, holding as follows:
(1) Disputes over what information to provide to the QME are to be presented to the WCAB if the parties cannot informally resolve the dispute.
(2) Although section 4062.3(b) does not give a specific timeline for the opposing party to object to the QME’s consideration of medical records, the opposing party must object to the provision of medical records to the QME within a reasonable time in order to preserve the objection.
(3) If the aggrieved party elects to terminate the evaluation and seek a new evaluation due to an ex parte communication, the aggrieved party must do so within a reasonable time following discovery of the prohibited communication.
(4) The trier of fact has wide discretion to determine the appropriate remedy for a violation of section 4062.3(b).
5) Removal is the appropriate procedural avenue to challenge a decision regarding disputes over what information to provide to the QME and ex parte communication with the QME.
To read the Entire decision, click HERE.
California’s 3rd District Court of Appeal will hear arguments later this month about whether the opinion of an agreed medical evaluator is sufficient to support a finding that a worker with an impairment rating of less than 100% is nonetheless permanently and totally disabled.
State Compensation Insurance Fund and the California Department of Corrections and Rehabilitation argue that the Workers’ Compensation Appeals Board erred when it determined Dean Fitzpatrick suffered a permanent and total disability as a result of a cumulative injury to his heart and psyche.
The California Chamber of Commerce argued in an amicus brief that the potential financial harm to employers would be “astronomical” if the WCAB decision is allowed to stand.
The California Applicants’ Attorneys Association says in an amicus brief that the WCAB decision was both correct and based on substantial medical evidence, and should not be overturned.
Dean Fitzpatrick was a correctional officer who suffered an accepted cumulative trauma injury to his heart and psyche. He apparently suffered from Prinzmetal’s angina that caused anxiety and depression, according to State Fund’s petition for review.
A panel qualified medical evaluator determined that Fitzpatrick reached maximum medical improvement for his heart condition on Jan. 16, 2016, but his MMI status was disputed for the psychological condition. An AME who examined Fitzpatrick three times concluded that he had reached maximum medical improvement for the psyche condition on June 13, 2015, and that Fitzpatrick was permanently disabled on “strict psychiatric grounds.”
The QME assigned a 97% impairment rating for the heart condition. The AME provided a Global Assessment of Functioning score of 45, which translated to an impairment rating of 71%. When the ratings were combined, Fitzpatrick was left with a 99% permanent disability rating.
Following a trial last year, a workers’ compensation judge in June found that Fitzpatrick was 100% disabled, pursuant to Labor Code Section 4662(b). The WCAB denied State Fund’s petition for reconsideration in September.
The carrier said in its petition to the 3rd DCA that the WCAB has interpreted the Labor Code section as “providing an unfettered path to 100% permanent disability based on its subjective assessment ‘in accordance with the fact.’”
The carrier said there are two recognized paths to a total and permanent disability rating. Labor Code Section 4662 creates a conclusive presumption that certain injuries result in 100% disability, and also says in other cases that PTD “shall be determined in accordance with the fact.”
Labor Code Section 4660 establishes the Permanent Disability Rating Schedule. The PDRS, which is based on the fifth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, can be rebutted by a worker showing he suffered a greater loss of future earnings capacity than is reflected in the scheduled rating.
“Therefore, if an injured worker seeks to rebut the PDRS, he or she must first demonstrate that a work-related injury precludes him or her from taking advantage of vocational rehabilitation and participating in the labor force by presenting evidence from a vocational expert to establish that due to the effects of their injuries, their loss of future earnings capacity is greater than reflected in the scheduled rating,” according to State Fund. “Although such evidence was provided in this case, it was explicitly dismissed by the WCJ and not considered by the board in rendering its decision.”
The carrier argues that the judge and the WCAB relied on an “invented expansion” of Labor Code Section 4662(b) in arriving at the conclusion that Fitzpatrick was 100% disabled.
State Fund argues that the legislative intent of the provision in 4662 allowing PTD determinations in accordance with the fact was to limit the conclusive presumptions to the enumerated conditions, which includes the loss of both hands or eyes, and injuries causing mental incapacity or paralysis.
“For over 100 years, no judicial body has ever interpreted Section 4662 as creating a second pathway to total disability because the Legislature did not intend the phrase ‘in accordance with the fact’ to be interpreted so broadly,” the carrier said. “The legislative history establishes that the plain meaning of the phrase ‘in accordance with the fact’ as set forth in Section 4662(b) merely means there is no presumption of total disability in any case other than the conditions listed in Section 4662(a).”
The California Chamber of Commerce agreed with State Fund’s statutory analysis and said Labor Code Section 4662 was not the proper way for the WCAB to conclude that Fitzpatrick was totally disabled.
Fitzpatrick didn’t have the specified conditions under 4662(a), the chamber argues. By jumping straight to finding that Fitzpatrick was totally disabled in accordance with the facts of the case, the WCAB ignored the requirements in Labor Code 4660, according to the chamber.
The chamber also claimed that the board didn’t require Fitzpatrick to present substantial evidence to rebut the presumption that his 99% rating was correct.
“In doing so, the board presented future litigants with an improper advantage wherein employees would be found total and permanently disabled without proper rebuttal evidence being required and forcing employers to accept a total permanent disability rating when the employee is actually only partially disabled,” the chamber said.
The chamber also said that while the difference between a 99% disability rating and a total disability rating may appear minor, the financial implication is not.
“While the permanent disability established here was 99%, the 1% difference would mean that the employer is liable for an additional $1.3 million,” the chamber said.
The California Applicants’ Attorneys Association said in its amicus brief that employers are trying to shift the appellate court’s attention to rebutting the PDRS and Labor Code Section 4660, when such issues are not relevant.
CAAA argues that the phrase “all other cases” in Labor Code 4662(b) makes the statute applicable to all other cases, and was not an attempt to restrict the conclusive presumption of total disability to the four specified conditions as State Fund argued.
“If the Legislature sought to limit all findings of permanent and total disability to only those defined by Labor Code 4662(a) or rebuttals to the PDRS via Ogilvie, this could have easily been done,” CAAA said. “Both SB 899 and SB 863 provided sweeping changes to the workers’ compensation scheme including the 2005 PDRS, yet the plain, unaltered language of Section 4662 states unambiguously that an injured worker may prove permanent and total disability in accordance with the facts."
CAAA said the argument that the WCAB has created an unfettered path to arrive at PTD is false.
“Injured workers still have to prove the facts upon which a finding of permanent and total disability could be made, and absolutely nothing in Labor Code 4662 in any way hinders a defendant’s ability to submit medical evidence, rebut exert testimony, provide their own vocational experts, or enter the full gamut of discovery that could be employed to argue against a finding of permanent total disability,” CAAA said.
The 3rd DCA is holding oral arguments at 9:30 a.m. Sept. 17.
Recently the LA Times reported on CT claims filed by various individuals in a scathing article. Please feel free to review the article here:
The 4th District Court of Appeal this week ordered publication of its ruling finding that an out-of-state football player could not pursue a cumulative trauma claim in California.
The court had released its ruling in Tripplett v. WCAB (Indianapolis Colts) as an unpublished opinion on June 28.
Unpublished opinions are citable only for their persuasive value in California.
Earlier this month, the comp carrier for the Colts had asked the court to order publication of the decision. The National Football League also submitted a request, as did World Wrestling Entertainment, the New York Giants and the Liberty Mutual Insurance Co.
The 4th DCA granted their requests on Tuesday.
The case arose out of Larry Tripplett’s claim that he had suffered cumulative trauma injuries during his six-year professional football career.
Tripplett filed a workers’ compensation claim in California in 2009. Each of his former teams and their workers’ compensation insurance carriers denied liability for his claimed injuries, but Triplett filed a motion electing to pursue benefits only from the Indianapolis Colts.
An administrative law judge allowed the election over the objection of the team.
At the hearing on his claim, Tripplett testified that he was living in Los Angeles when he signed the contract with the Colts at his agent’s office in Newport Beach, but a representative for the team said he recalled inking the deal with Tripplett during training camp in Indianapolis.
An administrative law judge found that jurisdiction was appropriate in California, since Tripplett’s agent had negotiated the contract from within the state.
The Workers’ Compensation Appeals Board reversed, finding an employment relationship had not been formed within California, since the contract was not signed while Tripplett or his agent were in California.
The 4th DCA agreed with the board.
While the contract was negotiated by his agent in California, the court said, the contract specified that it became effective once signed.
Since there was no evidence that Tripplett could not reject the contract terms that his agent had negotiated, the court said the negotiation from California was not sufficient to form a binding deal.
The court further found that because Tripplett had played two games in California, it did not give the state jurisdiction over his claim, since the cumulative effect of his alleged injuries did not “ripen into disability” during either of those contests.
All California employers would be allowed to pay temporary disability benefits by debit card, under a recently amended bill.
Sen. Richard Pan, D-Sacramento, on Wednesday amended Senate Bill 880 to expand the proposed debit card pilot program that originally would have included only State Compensation Insurance Fund.
The amended SB 880 would allow any employer in California to offer temporary disability benefits on a prepaid debit card starting Jan. 1 and continuing until Jan. 1, 2023.
Injured workers would have to opt in and request in writing to receive benefits on a card. The bill would also require that workers be able to withdraw the entire balance on the card in a single transaction without incurring fees and have reasonable access to “in-network” automatic teller machines.
The Assembly Insurance Committee is scheduled to hear testimony on the bill at 9 a.m. Wednesday in room 127 of the Capitol.
A Southern California applicant was sentenced to 30 days in county jail after pleading guilty to a workers’ compensation fraud charge for misrepresenting his limitations, according to Probe Information Services.
Julio Cesar Gomez filed a claim for an injury he said he sustained while working for Silver Creek Industries. Gomez said he was bending over removing nails and felt a strain as he straightened his body.
Gomez testified during a deposition that he had not performed yardwork, automotive repair work or lifted anything weighing more than 15 pounds since the date of his injury. During a medical evaluation, Gomez denied engaging in rigorous activities and said he was unable to work because of pain.
Probe Information Services said it obtained surveillance footage of Gomez performing physically demanding activities including digging holes with a shovel, climbing in and out of the holes, jumping over a fence, installing a roof liner inside a vehicle, carrying a full tool bag and carrying automotive parts weighing more than 15 pounds.
A medical evaluator said there were substantial differences between Gomez’s subjective complaints and what the video footage showed. Based on the video, the evaluator said Gomez didn’t require any work restrictions and wasn’t entitled to benefits.
The Riverside County District Attorney’s Office filed three felony workers’ compensation fraud charges against Gomez, who pleaded guilty to one count on May 3. He was sentenced to 30 days in jail and ordered to pay restitution totaling $30,000
An Applicant who used fake identification to file a claim for an injury that he was also faking was sentenced Tuesday to a year in jail for felony workers’ compensation fraud, according to Intercare Holdings Insurance Services.
Juan Zendejas Barron, of Watsonville, pleaded guilty in March to two counts of insurance fraud, one count of perjury and one count of using a false identity to file a claim, all felonies, Intercare said. The Santa Cruz County Superior Court sentenced him Tuesday to one year in jail, a $1,200 fine and ordered him to pay $124,027 in restitution in monthly installments.
Barron filed a claim against Ramco Enterprises in September 2015 for an alleged injury to his groin, legs, back and abdomen using the name and Social Security number of Octavio Guadarrama. Prosecutors learned that he had used a false identify after the real Guardarrama showed up at a court hearing wondering why he had been charged with fraud.
Investigators learned that Barron had also filed a claim under his own name for an injury to the same body part against a different employer, Intercare said.
Division of Workers’ Compensation online records show that he filed a claim against Christopher Ranch for injury to his respiratory system and skin in 2015, and against Silver Mountain Vineyards for an injury to his head, brain, neck and back in 2012.
Barron was ordered to report to authorities by June 1 to begin his jail term.
California’s Supreme Court on Monday laid down three-prong test to determine whether a person is an employee of an independent contractor.
The three-part test the court created in Dynamex Operations West Inc. v. Superior Court of Los Angeles County (Lee) asks whether a worker:
If the answer to any of the three questions is “no,” a person is an employee subject to various labor law protections, including minimum wages, and meal and rest periods.
Though the high court proposed the test for the purposes of wage violations, the new test could also be useful to determine whether a person is an employee who has to be covered by workers’ compensation. Such application could have far reaching implications, especially in the general-special employer scenarios.
To read the full test of the decision click here: Decision
A federal judge dismissed most of the claims in a lawsuit challenging the constitutionality of a California law requiring the Department of Industrial Relations to stay liens filed by, or on behalf of, criminally charged providers, but allowed plaintiffs the opportunity to file an amended complaint later this month.
U.S. District Court Judge George H. Wu, in an order posted to the court’s website on Friday, also rejected a motion asking him to hold the department in contempt for allegedly violating a December order requiring the agency to allow claimants to argue that a stay was inappropriately applied to a particular lien.
Wu said he did not have a problem with Workers’ Compensation Appeals Board judges continuing cases and allowing the department’s Anti-Fraud Unit to submit evidence it used when freezing a lien.
Wu’s order in Vanguard Medical Management Billing et al. v. Christine Baker et al. marks the end for claims that the lien stay constitutes an improper governmental taking of property or violates the supremacy clause of the U.S. Constitution, which he dismissed with prejudice.
To read the entire order, click here: Order